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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

October 24, 2017

Why Wisconsin's Criminal Burden of Proof Instruction Had to Be Changed




People with even a glancing understanding of our criminal justice system are familiar with the quote of the English jurist William Blackstone:  “For the law holds it is better that ten guilty persons escape than that one innocent suffer".[i] 
American jurists have also voiced a similar view as Blackstone. Justice John Marshall Harlan saw the criminal burden of proof of beyond a reasonable doubt as a primary bulwark against wrongful convictions. Justice Harlan wrote:  “I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”[ii]
Justice William Brennan, with a statistically slant, understood the protections of the criminal burden of proof in the same way: “There is always in litigation a margin of error, representing error in fact finding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof in the first instance, and of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt.”[iii]
We sing that the United States of America is “the land of the free”. Locking up an innocent person is certainly antithetical to the value of liberty. However, people with a working knowledge of the criminal law know that on occasion, a jury gets it wrong and convicts an innocent person. Few would argue that convicting an innocent person isn’t a tragedy for that person and his or her family.
The National Registry of Exonerations has documented that since 1989 over fifty people who had been convicted of a crime in Wisconsin courts, have been exonerated based on new evidence of innocence.[iv] The Wisconsin Innocence Project has also documented wrongful convictions.[v] Many of the cases the Wisconsin Court of Appeals and Wisconsin Supreme Court have reversed on the grounds of insufficiency of the evidence raise the issue of a wrongful conviction. The question arises as to how many innocent people are now staring at a prison wall grasping at imaginary threads of hope that new evidence may turn up in their case to exonerate them too.
A recent research article provides empirical evidence that Wisconsin’s pattern jury instruction on reasonable doubt[vi] may contribute to wrongful convictions by reducing the beyond a reasonable doubt burden of proof that was formulated to protect against convicting the innocent. In Truth or Doubt? An Empirical Test of Criminal Jury Instructions,[vii] Cicchini and White tested three jury instructions. Three randomly selected groups of approximately 100 individuals were assigned to read the same fact pattern of a criminal case along with the prosecutor’s and defense counsel’s closing arguments. The three groups of mock jurors were then given three different jury instructions.
The mock jurors in the first group were instructed that the State had the burden of proving every fact necessary to constitute guilt, but were not given an instruction regarding the beyond a reasonable doubt burden of proof. Instead they were instructed, “In reaching your verdict, you are not to search for doubt. You are to search for the truth.” With this instruction, 29.6% of the mock jurors voted to convict.
The mock jurors in the second group were given the Wisconsin pattern jury instruction on the burden of proof but with the last paragraph that states: “While it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt.  You are to search for the truth” replaced with: “It is your duty to give the defendant the benefit of every reasonable doubt”. With this instruction, 16% of the mock jurors voted to convict.
The third group of individuals were given the Wisconsin pattern jury instruction with the pattern final paragraph which read: “While it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt.  You are to search for the truth.” With this instruction, 29% of the mock jurors voted to convict.
The percentage of mock jurors who voted to convict was almost twice as high (29% compared to 16%)  for those jurors who received Wisconsin’s pattern jury instruction compared to those jurors who received the same instruction but without the last phrases, “you are not to search for doubt. You are to search for the truth.” The difference between the 16% conviction rate and the 29% conviction rate was statistically significant.
In the Cicchini and White study, the group of jurors given Wisconsin’s pattern jury instruction for the criminal burden of proof convicted at about the same rate (29% compared to 29.6%) as those that didn’t receive any instruction at all on reasonable doubt, but only the charge to not search for doubt but to search for the truth, essentially the same instruction given a jury in a civil case.  The United States Supreme Court warned against such a result when it held that the State must prove every element of a crime beyond a reasonable doubt.  “[A] person accused of a crime would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.”[viii]
The results of the Cicchini and White study alarmed me, and should alarm all in the criminal justice system. As discussed above, the beyond a reasonable doubt burden of proof is  designed to minimize the risk of a wrongful conviction with the acceptance of a concomitant increase in risk that a guilty person will be found not guilty. It is designed with the implicit assumption that it is better that a guilty person go free than an innocent person be convicted.  The results of the Cicchini and White study provides empirical evidence that the protection of the beyond a reasonable doubt burden of proof has been degraded in the pattern instruction.
Cicchini and White argue that the problem with the instruction is “that the truth-related language at the end of an otherwise proper reasonable doubt instruction actually diminishes the burden of proof.”[ix] They argue that trials are not a search for the truth, and are only about whether the government has met its burden of proof.[x]
            Although I believe Cicchini and White have identified something important regarding the Wisconsin pattern jury instruction on reasonable doubt, I think they misidentify the problem. The instruction that the jury should search for the truth is not what diminishes the beyond a reasonable doubt burden of proof.  What diminishes the burden of proof is the part of the instruction that says: “… you are not to search for doubt.”   Any critical analysis of evidence requires a search for both truth and doubt.  
In a criminal trial, the jurors are first instructed:  “It is your duty to follow all of these instructions.”[xi] They are instructed that they are to give the defendant the benefit of every reasonable doubt, but then at the end, the jurors are ordered that they are not to search for doubt. The instruction is a court order to jurors to not identify and critically evaluate the doubt around the evidence presented at trial. Without this thought process, jurors cannot determine if a crime was proved beyond a reasonable doubt. Jurors must search for the truth and must search for the doubt surrounding any possible truth.
            Further proof that the prohibition on searching for doubt vitiates the criminal burden of proof is provided by experience in the courtroom. Anyone who has had any experience with criminal trials knows the importance of these last two sentences. The meaning of this phrase is made clear by its use. [xii] During closing arguments, the defense attorney often argues the burden of proof instruction, many times not mentioning the last phrases, and then the prosecutor, on rebuttal, says “Defense counsel read you only part of the jury instruction on reasonable doubt. What counsel left out were these two lines: ‘you are not to search for doubt. You are to search for the truth.’” 
            Prosecutors make this argument because they know that the order prohibiting the search for doubt diminishes the beyond a reasonable doubt burden of proof and makes it easier for the State to obtain a conviction.[xiii] I have had these lines used against me as a defense attorney, and mea culpa, mea culpa,  I have used them against defense counsel as district attorney.  
            Truth and doubt are separate concepts in a criminal trial. The search for truth has been part of the jury system since its inception. “Verdict” is derived from the latin words “verus”, which means “truth”, and “dictum” which means “saying”.  The “truth” in a jury trial is a social construct of a social institution—the jury. The jury says the truth when it delivers a verdict.
Jurors “search for the truth” when they inductively formulate coherent, probabilistic explanations about a historical event (reasonable hypotheses) from the evidence presented to them at trial, explanations that are based on reasonable inferences from the evidence. Ultimately, the search for the truth involves a judgment as to whether any of the reasonable hypotheses about what happened encompasses a secondary hypothesis that all elements of the crime have been proven and that the defendant may be guilty.
Doubt is the amount of confidence one has about the probabilistic hypothesis that all elements of the crime were proven. If the jurors unanimously find that the probabilistic hypothesis that all elements of the crime were proven, then for the jurors to complete their jobs, they must still grapple with the doubt around that hypothesis. They must determine what doubts they have, and if any of the doubts are reasonable doubts as compared to unreasonable doubts. If they unanimously believe the hypothesis that all the elements of the crime have been proved beyond a reasonable doubt then they have found the “truth” in a criminal trial.  If they don’t unanimously find such a hypothesis beyond a reasonable doubt, then they have found another “truth”—that the elements of the crime have not been proved beyond a reasonable doubt. The jury speaks the truth through its verdict.
That truth and doubt are two separate concepts is made clear when considering the various burdens of proof.  The law has three burdens of proof for a jury trial.  The elements that the jury is tasked to find,  in other words the jury’s search for the truth,  may be the same in each case. For example, the jury may be asked whether or not a battery had occurred. The question asked is the same , however the acceptable level of doubt is different with each different burden of proof, and the acceptable level of doubt determines if “the truth” is found to support a verdict.
 In a civil case, the burden of proof is to the greater weight of the credible evidence. The jurors are instructed that if they are convinced that one side had more convincing proof of what historically happened, then that side should win. If the plaintiff’s version of events was more convincing than the defendant’s version, then the jury has found “the truth” and the verdict should be for the plaintiff.
In other civil cases, such as civil forfeiture cases, the burden of proof is clear satisfactory and convincing evidence. If the evidence supporting the plaintiff’s version of events is not clear, satisfactory, and convincing then the defendant should prevail, even if the jury thought that the plaintiff’s version of what happened was more convincing than the defendant’s version.
 In criminal cases the burden of proof is beyond a reasonable doubt.  If the evidence supporting the State’s version of events is not beyond a reasonable doubt, then the defendant should prevail, even if the jury believed that the State’s version of what happened was more probable.
In classical statistics terms, convicting an innocent person is a “false positive” and called a type I error. Not convicting a guilty person is a “false negative” and called a type II error.[xiv] All burden of proof instructions apportion the risks between these two types of error.[xv] The beyond a reasonable doubt burden of proof accepts less type I error but with the cost of an increase in type II error. This apportionment of risk has been set by the United States Supreme Court and has been part of our jurisprudence from the beginning of our nation.[xvi]
Using the classical statistics paradigm, “what happened” is akin to the expected value or mean. The burden of proof is akin to the confidence interval around the mean.  For example, if the question is whether or not a large, opaque jar of marbles contains more black marbles than red marbles (greater than 50%) and I blindly reached into it and randomly make four selections, and three of the marbles are black and one red,  I could say: “Based on a rational consideration of the evidence my best estimate is that this jar contains 75% black marbles which means it contains more black marbles than red marbles.” But I would also say: “I am not certain of that. I have my doubts. It may have just been chance that I selected three black marbles. I may be way off.”
But, if I blindly reached into a large opaque jar of marbles and randomly made four hundred selections, and three hundred of the marbles were black and one hundred of them were red,  I could say: “Based on a rational consideration of the evidence, my best estimate is that this jar contains 75% black marbles which means it contains more black marbles than red marbles.”  But now I would also say: “I am quite certain that it contains more than 50% black marbles.”
The best estimate of the contents of the jar in both cases is the simple mean. In both scenarios the simple mean was 75% black marbles and 25% red marbles. The calculation of the mean is the search for the truth of what actually is in the jar. The certainty of that estimate of the mean is calculated using a different statistic called the standard error. The larger the sample size, the smaller the standard error all other things remaining equal.
The standard of error is used to calculate a confidence interval. For example, one could say in the scenario with four observations, “I am 95% sure that the jar holds between 12% and 99%  black marbles.” The difference between the two numbers is the confidence interval. The 95% confidence interval is wide in this scenario, 87 percentage points, and the lower number (12%) is well below the 50% threshold. I would not feel very certain that the jar contains more black marbles than red marbles.
In the second scenario with 400 observations, one could say: “I am 95% sure that the jar holds between 70% and 79% black marbles.” In this scenario, the 95% confidence interval is only 9 percentage points and the lower number (70%) is well above the 50% threshold. I would feel quite certain that the jar contains more black marbles than red marbles.
As you can see, the possible “truth” is the same under both scenarios, the jar holds 75% black marbles. However, the certainty (and its opposite, doubt) of the possible “truth” of the situation is very different. Not searching for doubt is the same as saying don’t consider that a difference exists between the 75% black marble estimate with a sample size of four marbles and the 75% black marble estimate with a sample size of four hundred marbles. One must search for the truth and one must search for doubt.
For a rational and critical analysis of the evidence, a juror must evaluate the evidence for the possible “truth” and for the doubt surrounding this possible truth in light of the burden of proof for the type of trial. If the possible truth is proven to the requisite burden of proof, then “the truth” has been found, and a verdict for the plaintiff rendered. In a criminal trial, for jurors to completely fulfill their responsibilities, they need to identify and evaluate the doubts surrounding the possible truth. They must determine if any of these doubts are “reasonable”.  The jury instruction for the criminal burden of proof that orders the jurors that they “…are not to search for doubt” is clearly incorrect as it orders the jury not to critically examine doubt.
 The lines that instruct the jurors not to search for doubt but to search for the truth was included in 1962 in the first pattern jury instruction on the criminal burden of proof.  Apparently the questionable phrase in the pattern instruction was picked-up from a 1923 case in which the judge instructed the jury “You are not to search for doubt, but you are to search for the truth.”  The Wisconsin Supreme Court found no error with the instruction because the jury was repeatedly warned that they should not find the defendant guilty unless they were convinced beyond a reasonable doubt. The Court also stated: “It is undoubtedly true that the aim of the jury should be to ascertain the truth…that the purpose of a trial is to ascertain facts, and not the ascertainment of doubt, which is the negation of a fact.”[xvii][xviii]
            Doubt is a not a negation of a fact or the truth.  A mistake of fact, a falsehood, an untruth, or a lie is a negation of the truth. A fact is not a negation of a doubt. Confidence, or certainty is the negation of doubt. Doubt is a measurement of one’s lack of confidence that something is or is not the truth. Doubt is a separate concept from truth.
            The Wisconsin Supreme Court again addressed a claim of error regarding the two sentences in 1995. The Court stated when the burden of proof instruction is challenged, the Court’s duty is to examine the objected to language within the context of the entire jury instruction to determine whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based below that of beyond a reasonable doubt.  And then after analyzing the entire burden of proof instruction held: “In the context of the entire instruction, we conclude that Wis. J.I.—Criminal 140 (1991), which was read to the jury, did not dilute the State's burden of proving guilt beyond a reasonable doubt.” [xix]
            The Supreme Court had to cloak the objected to language in the entire reasonable doubt jury instruction to not find that there was a reasonable likelihood that the jury understood the instructions to allow a conviction on proof less than beyond a reasonable doubt. No argument was made that the objectionable language was somehow supported by the law. The reasonable doubt jury instruction was found to pass constitutional muster despite the offending language.
If one desires to maintain fidelity to the constitutional apportionment of type 1 and type 2 error embodied in requirement that the State must prove every element of a criminal offense beyond a reasonable doubt, there is no benefit in using the offending language. Retaining this language adds nothing to the juror’s understanding of their duties. The offending language only has the cost of vitiating the beyond a reasonable doubt burden of proof.
Instructing the jury to not search for doubt, after spending the entire first part of the jury instruction on giving the defendant the benefit of every reasonable doubt, is like giving a traveler instructions on how to get from Juneau to Beaver Dam and providing multiple warnings to be careful of farm equipment pulling out of fields on blind curves and on blind hills on the road between Juneau and Beaver Dam, only to then order the traveler that they are not to not look for farm equipment but only look for the road between Juneau and Beaver Dam. Such an instruction would be nonsense and everyone would immediately recognize it as nonsense.
I changed the last two lines of the criminal burden of proof instruction. I believe the following change enhances the criminal justice system by more clearly instructing jurors to adhere to our Constitution’s requirement that the State be required to prove a criminal charge beyond a reasonable doubt. I believe this change will decrease the chance that an innocent person will be convicted. The last two lines of this instruction should be changed to: “It is your duty to give the defendant the benefit of every reasonable doubt while you search for the truth.
As judges sworn to uphold the Constitution of the United States to the best of our ability, we are not fulfilling our duty by retaining extraneous language in a jury instruction that has a non-zero probability of violating the Constitution.  I believe the results of the Cicchini and White study coupled with the way the offending clause has been and is used by prosecutors at trial, should make one doubt whether the current pattern jury instruction on the criminal burden of proof affords the citizens of the State of Wisconsin with the protection against wrongful convictions that the beyond a reasonable doubt burden of proof is designed to give. The pattern jury instruction must be corrected.




[i] 4 William Blackstone, Commentaries; Chapter 27, Of Trial, and Conviction
[ii] In re Winship, 397 U.S. 358, 372, 90 S. Ct. 1068, 1077, 25 L. Ed. 2d 368 (1970), Justice Harlan concurring.
[iii] Speiser v. Randall, 357 U.S. 513, 525–26, 78 S. Ct. 1332, 1342, 2 L. Ed. 2d 1460 (1958).
[iv] National Registry of Exonerations, A Project of the University of California Irvine Newkirk Center for Science & Society, University of Michigan Law School, and Michigan State University College of Law; www.law.umich.edu/special/exoneration/Pages/about.aspx;
[vi] Wis. J.I. – Criminal 140 (2000).
[vii] Michael D. Cicchini & Lawrence T. White, Truth or Doubt? An Empirical Test of Criminal Jury Instructions, Univ. 50Rich. L. Rev.1139 (May 2016)
[viii] In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368 (1970)
[ix] Cicchini and White, p. 1155
[x] Cicchini and White p 1139.
[xi] Wis. J.I. – Criminal 100 (2000)
[xii]  Pragmatics instructs that the contextual use of a statement in a culture reveals the statement’s meaning. See for example,  https://www.linguisticsociety.org/resource/meaning-semantics-and-pragmatics.
[xiii] Is it ethical for a prosecutor to make such an argument?
[xiv] Snedecor and Cochran, Statistical Methods, 7th Edition, 1980, p. 66.
[xv] United States v. Harper, 662 F.3d 958, 961  (7th Cir. 2011).
[xvi] “The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The ‘demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, (though) its crystallization into the formula ‘beyond a reasonable doubt’ seems to have occurred as late as 1798. “ In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071, 25 L. Ed. 2d 368 (1970)
[xvii] Manna v. State, 179 Wis. 384 (1923).
[xviii] The phrase was  probably originated from a case from another state as it appears both Massachusetts and New Jersey at one time or another also used this phrase.
[xix] State v. Avila, 192 Wis. 2d 870, 890, 532 N.W.2d 423, 430 (1995) overruled by State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765 on other grounds.


The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

1 comment:

  1. Judge Bauer,

    You and your readers may also be interested in our "conceptual replication" study, published earlier this year by Columbia and available here: http://columbialawreview.org/wp-content/uploads/2017/02/March-2017-CW-Online.pdf

    There have also been some truly bizarre and off-base criticisms of the studies, which I address in this forthcoming article: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2916389

    And my coauthor and I addressed a recent set of criticisms in this forthcoming article: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3043907

    Best regards,
    Michael D. Cicchini

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